Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
Justices Ginsburg and Stevens dissented from the majority’s decision to order the
dismissal of Buckley’s medical monitoring claim:
The Court of Appeals held that a medical monitoring claim is solidly grounded, and
this Court does not hold otherwise. Hypothesizing that Buckley demands lumpsum
damages and nothing else, the Court ruminates on the appropriate remedy
without answering the anterior question: Does the plaintiff have a claim for relief?
Buckley has shown that Metro-North negligently exposed him to “extremely high
levels of asbestos,” and that this exposure warrants “medical monitoring in order to
detect and treat [asbestos-related] diseases as they may arise.” . . . Buckley’s expert
medical witness estimated the annual costs of proper monitoring at $950. We do
not know from the Court’s opinion what more a plaintiff must show to qualify for
relief.
521 U.S. at 448 (Ginsburg, J., concurring and dissenting).
3. Norfolk & Western v. Ayres: The limits of Buckley. What about plaintiffs with mental
anguish alongside physical symptoms caused by asbestos exposure? Did Buckley’s rationale
extend to their emotional distress claims as well? The Supreme Court took up this question six
years after Buckley in Norfolk & Western Railway v. Ayers, 538 U.S. 135 (2003).
In Norfolk & Western, the Court clarified that “mental anguish damages resulting from the
fear of developing cancer may be recovered under the FELA by a railroad worker” when they are
“associated with, or ‘parasitic’ on, a physical injury.”
Distinguishing Metro-North v. Buckley, the Court contended that the “universe of
potential claimants” with asbestosis symptoms in fear of cancer claims would be “only a fraction”
of those exposed to asbestos, citing studies indicating that “of persons exposed to asbestos after
1959, only 2 percent had asbestosis when first examined.” Norfolk & Western, 538 U.S. at 157.
Finally, the Court acknowledged concerns it had articulated in the late 1990s in class
action asbestos cases: “The ‘elephantine mass of asbestos cases’ lodged in state and federal
courts, we again recognize, ‘defies customary judicial administration and calls for national
legislation.’ Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999).” But Justice Ginsburg insisted
that courts must nonetheless “resist pleas of the kind Norfolk has made, essentially to reconfigure
established liability rules because they do not serve to abate today’s asbestos litigation crisis.”
Norfolk & Western, 538 U.S. at 166.
Justice Kennedy, joined by Chief Justice Rehnquist and Justices O’Connor and Breyer
dissented from the majority’s holding on the fear of cancer claims at issue on the grounds that
neither the Court’s prior FELA interpretations nor common law principles compelled or justified
the majority view. Moreover, Justice Kennedy contended that “the realities of asbestos
litigation,” id. at 167, warranted holding that asbestos plaintiffs suffering from asbestosis should
not be able to recover for fear of future cancer. In particular, Justice Kennedy expressed concern
that those asbestos plaintiffs who eventually contract diseases such as mesothelioma, for example,
would be less likely to be able to recover damages “for the simple reason that, by the time [they
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